Two teenage brothers drove their car up to the United States Border Patrol Checkpoint near Whetstone, Arizona, about 100 miles from the Arizona/Mexico border. A drug dog alerted to the presence of narcotics in the car. The car was directed to a second check point, and the two were asked to exit the car. They did so, and they consented to a search of the car. The drug dogs were then unable to find any drugs in the car and did not alert to any drugs on their persons. However, an officer observed that one of the brothers was acting nervous and repeatedly “touched his abdomen area.” Officers decided to frisk the two brothers for weapons.
During the frisk, the officers felt an object through one suspect’s shirt. They lifted off the suspect’s shirt and found a “brick-shaped object taped on the Defendant’s abdomen.” The then found a similar brick-shaped object taped to the other suspect’s abdomen. The opinion isn’t very clear as to exactly what happened next, but it seems that they ripped off the tape and took the brick-shaped objects, which contained marijuana. (The opinion just says that at that point the officers “seized the marijuana.”) The brothers were then charged with possessing marijuana, and they challenged the frisks as violating the Fourth Amendment.
The Ninth Circuit divided on whether the officers acted properly. The majority, Judge N.R. Smith joined by Judge Christen, concludes that the officers acted improperly and violated the Fourth Amendment because they lacked reason to think that there was a gun present as opposed to drugs.
An intellectually honest decision, particularly given how easy it would have been for the officers to make up a rationale to justify their fear that the brothers were armed. They didn’t. They told the truth. The law worked. Well, at least two-third of the way.
Judge Kozinski dissents, reasoning that where there may be drugs, there may be guns, justifying a frisk of the suspects for guns.
While Judge Kozinski is often on the side of the angels when it comes to adhering to doctrine, even though it lets the bad guy walk, not this time. This time, its the unwritten presumption that wherever there are drugs, the law should presume there are guns.
Common sense tells us that people engaged in legitimate business don’t tape bricks to their bodies. This would be true even if the encounter had been on a street corner in Pocatello, but at a checkpoint on a highway heading from the Mexican border, after a dog had alerted to possible drugs? Any officer who sent I.E.V. on his way without finding out what he was hiding under his shirt should have been fired for incompetence.
There it is, the enemy of proof and the cheap backdoor when there is no reason to be had: common sense. When you can’t explain something logically, just chalk it up to common sense and leap right over that huge gap.
Of course, there is a much simpler answer to the issue of incompetent border patrol agents letting a suspect go because he’s constrained by the Constitution. Got probable cause? Get a warrant. Too much work? Too nebulous a justification for a warrant? Bummer. That darn Constitution keeps getting in the way of catching the bad guys. But Alex, you know this is how it works. You know sometimes the guilty go free. You’ve even held as much. Why eschew the Constitution this time?
The bugaboo of drugs has given rise to no shortage of convenient myths that the judiciary has embraced to create exceptions to the Constitution. Guns and drugs are integrally connected. Dogs are magic and honest and cute as the dickens. Cars with drugs emit odors that can be smelled from great distances and at high speeds. Cars with drugs aren’t covered by the Fourth Amendment in any event, because, well, they’re not.
My utter rejection of the use of “common sense” to leap tall buildings and logical and evidentiary gaps is been explained many times before. There is no such thing. It’s a really cool fallacy used to appeal to facile assumption when facts and the laws of physics won’t support the conclusion. It’s pulled out of the bag of tricks when reasonable doubt stands in the way of conviction. Never use “common sense” around here unless you want to get an eyeful.
So drug dealers don’t use guns? Of course they do, when they do. And when they don’t, they don’t. And when the drugs are taped to the abdomen of mules, like these brothers, there is little chance anybody put a gun on them as well.
But who cares? The question isn’t how many facile assumptions can be made to justify circumvention of the Constitution, but whether the officers involved had a reason to fear for their safety. They didn’t. They said they didn’t. They offered nothing to suggest, despite their lack of subjective fear, there was an objective basis to believe they did, or should. Judge Kozinski’s leap to the contrary, there is no intrinsic rule of nature that anyone in possession of drugs is presumed to be armed, and yet Kozinski chides (he does that, sometimes) the majority of his panel for being “out of touch”:
It’s easy enough, sitting safely in our chambers, protected by U.S. Marshals with guns and dogs, surrounded by concrete barriers and security cameras, to say that officers in the field had no cause to fear for their safety. But if we’d been there when I.E.V. and his brother pulled up in their car, heard the police dog alert and seen one of the suspects fidget like he was reaching for a weapon, I’d have dived for cover into the nearest ditch, and my guess is I wouldn’t have been the first one there.
This would have been such a great benchslap, if only he came out the other way. But there is another failing to Judge Kozinski’s dissent that goes unnoticed. Not until the officers searched and found a brick of marijuana taped to the defendant’s abdomen do they have evidence of drugs. Search first, then justify the legality of the search by what’s found? Not around these parts, cowboy.
Perhaps I’m naive (as I’ve been accused a few times lately), but I’ve come to expect better of Judge Kozinski, who is usually on the more fearless side of constitutional interpretation. Come on, Judge. Pick yourself up, dust yourself off and get your judicial butt out of that ditch. You’re right, you probably wouldn’t have been the first one there, but do you really want to hang out in a ditch with others who wring their hands out of fear of the consequences of adhering to the Constitution? I didn’t think so.